I have an article coming out soon on various constitutional issues surrounding the draft. So of course I was interested to see the announcement this week that draft registration will become automatic starting at the end of the year. From an administrative standpoint, this makes sense. But the change raises a question.
Five years ago, the Court denied certiorari in a case challenging male-only draft registration. Three Justices concurred in the denial on the ground that Congress was “actively” considering changing to a sex-neutral registration system. This is no longer the case. Thus, the new administrative system could be challenged in another attempt to overrule the 1981 Rostker decision upholding male-only registration. Perhaps we will see such a lawsuit.